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SCR.A/55120/2008 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 551 of 2008
============================================
RAJESH
JAGDISHCHANDRA VAISHNAV - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
============================================
Appearance :
MR
BD KARIA for Applicant(s) : 1,
MR KT DAVE
ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,
MR MEHUL S SHAH for
Respondent(s) : 2,
MR SURESH M SHAH for Respondent(s) :
2,
============================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 26/08/2008
ORAL
ORDER
1. Rule.
Learned advocates appearing for the respective parties waives
service of rule on behalf of the respondents.
2. This
Special Criminal Application is filed by the petitioner under Article
226 and 227 of the Constitution of India read with Section 451 of
Code of Criminal Procedure, 1973, for issuance of writ of certiorari,
or any other appropriate writ, order or direction, quashing and
setting aside the impugned judgment and order dated 6.2.2008 passed
by the learned Addl. Sessions Judge, Dhrangadhra in Criminal Revision
Application No. 2 of 2008 (at Annexure-L) and further order to
restore the Order passed by the Ld. Judicial Magistrate (First
Class), Halvad, dated 21.1.2008, below Application filed by the
petitioner for handing over the Muddamal Tractor Trolley No.
GJ-12-U-220 in C.R.No.I-36/2003 lying in custody of Halvad Police
Station, Sub-District: Dhrangadhra, District: Surendranagar.
3. The
short facts of the case are as under:
3.1. That,
on 2.4.2003, the petitioner herein filed FIR against one Pravinbhai
Karsanbhai Patel in the Halvad Police Station under Sections 406, 420
of Indian Penal Code alleging that the said Pravinbhai had sold a
Tractor Trolley No.GJ-13-U-220 to the petitioner which was registered
in R.T.O. in the name of the petitioner but did not hand over the
possession of the same. The said F.I.R. is registered as
C.R.No.I-36/2003.
3.2. Upon
preferring an application on 5.7.2003 under Section 451 of the Code
of Criminal procedure in the Court of learned J.M.F.C.Halvad, for
custody of Muddamal Tractor Trolley. By order dated 21.7.2003, the
learned JMFC, Halvad, directed to hand over interim custody of the
Muddamal Tractor Trolley to the petitioner.
3.3. However,
respondent No.2 herein being aggrieved by the order dated 21.7.2003
passed by learned JMFC, Halvad, preferred Criminal Revision
Application No. 19/2003 in the Court of 2nd Fast Track
Judge, (Addl. Sessions Judge) Dhrangadhra, which came to be dismissed
and, therefore, respondent No.2 preferred Special Criminal
Application No.1286/2004 before this Court and in the above case,
this Court passed an order on 15.12.2006 (Coram: Hon’ble Mr. Justice
K.S.Jhaveri) directing the learned JMFC to expedite the hearing of
the proceedings being complaint registered as C.R.No.I-36/2003 within
a period of 1 year from the receipt of the writ of this Court.
3.4. Meanwhile,
the police had already filed A summary on 18.11.2003 in the
above C.R.No. I-36/2003 as the accused person i.e. Pravinbhai
Karnsanbhai Patel was not found by the police and the learned JMFC,
Halvad, on 5.1.2004, was pleased to sanction the said A summary
filed by the police.
3.5. However,
the above aspect was not brought to the notice of this Court on
15.12.2006, when the order was passed. It also happened that the
petitioner preferred an application on 1.5.2006 for handing over the
possession of the Muddamal Tractor Trolley during the pendency of the
trial and once again, the learned JMFC, Halvad, passed an order on
21.1.2008 of handing over the muddamal Tractor Trolley to the
petitioner on the ground that the trial was not likely to proceed in
view of filing of A summary since the accused was not
traceable.
3.6. Being
aggrieved by the order dated 21.1.2008, respondent No.2 again
preferred Criminal Revision Application No.2/2008 in the Court of
learned Additional Sessions Judge, Dhrangadhra, which came to be
allowed vide order dated 6.2.2008, on the ground that it was not just
and proper by learned JMFC, Halvad to pass the order on 21.1.2008, by
which, custody of Muddamal Tractor Trolley was directed to be handed
over to the petitioner since A summary was already filed and
directions was given by this Court in earlier order dated 15.12.2006
to dispose of the criminal case pursuant to the above FIR.
3.7. It
is to be noted that on earlier occasion when Criminal Misc.
Application No.7109/2006 was preferred by the petitioner herein, by
oral order dated 5.7.2006 (Coram: Hon’ble Mr. Justice J.R.Vora) also
directed that with regard to pending Criminal Case without being
influenced by the pendency of Special Criminal Application No.1286 of
2004, the learned Magistrate can pass appropriate order.
4. Shri
Karia, learned advocate, for the petitioner submits that so far as
lawful ownership of the Muddamal Tractor Trolley is concerned, as
early as in the year 2003, when the learned JMFC passed the first
order on 21.7.2003, it was specifically found that the Tractor
Trolley No. GJ-12-U-220 was registered in RTO in the name of the
petitioner and by imposing certain conditions passed the order to
hand over the custody of the said Tractor Trolley. The above order
passed by the learned Magistrate was rightly confirmed in the
Revision Application No.19/2003 by order dated 19.11.2004 by which,
the learned Revisional Court rejected that Revision Application filed
by respondent No.2. Even according to Shri Karia, learned advocate,
for the petitioner, earlier the revisional court found that the order
passed by the learned Magistrate was just and proper and in the
R.C.Book name of the petitioner herein was found as a registered
owner and, therefore, now no interference was called for by the
revisional court.
4.1. Shri
Karia, learned advocate, for the petitioner further submits that even
after the order dated 15.12.2006 came to be passed in Special
Criminal Application No. 1286/2004, certain factual aspects with
regard to filing of A summary was not brought to the notice
and, therefore, once again the petitioner preferred an application
for handing over the possession of the Tractor Trolley. By order
dated 21/1/2008, learned Magistrate ordered for handing over the
Muddamal Tractor Trolley to the petitioner on the ground that the
police has filed A summary and as the trial is not likely to
proceed further as the accused is not found. The interference by
the revisional court by setting aside the order dated 21.1.2008, by
an order dated 6.2.2008, on the ground that the learned JMFC ought to
have taken into consideration direction of this Court that the trial
was to be disposed of within a period of one year. Learned advocate
for the petitioner contends that above premise of the revisional
court is improper and contrary to the evidence on record, inasmuch
as, due to filing of A summary and non-traceability of the
accused, trial was not likely to proceed the matter, in that event
the only course which was open to the learned Magistrate was to hand
over the muddamal as per the order passed dated 21.7.2003, keeping
the muddamal article in custody of police in the year 2003 was not
germane, in view of the decision in the case of Sunderbhai Ambala
Desai v. State of Gujarat reported in AIR 2003 SC 638.
5. Shri
Mehul Shah, learned advocate, appearing for respondent No.2 submits
that so far as ownership and lawful possession of the Muddamal
Tractor Trolley is concerned, civil suit is pending between the
parties. Not only that but respondent No.2 is in lawful possession
of Tractor Trolley pursuant to the said Tractor Trolley which was
sold by him to the accused and just because name of the petitioner is
found in the R.C.Book as an owner, respondent NO.2 who is an original
claimant of the muddamal Tractor Trolley, cannot be deprived of the
same. Learned advocate however contended that since directions were
issued by this Court on both the occasion by order dated 15.12.2006
in Special Criminal Application No.1286/2004 and order dated 5.7.2006
in Criminal Misc. Application No. 7109/2006, the only course which
was open for the concerned Magistrate was to see that the case is
finally disposed of. Therefore, according to learned advocate for
respondent No.2 order passed by the revisional court on 6.2.2008
impugned in this petition needs no interference.
6. Having
heard learned advocates appearing for the parties, considering the
facts and circumstances of the case, admittedly the name of the
petitioner is registered in the R.C.Book as owner of the Muddamal
Tractor Trolley. Not only that but, as early as on 21.7.2003,
learned JMFC, Halvad has admittedly ordered to release the Muddamal
Tractor Trolley. Thereafter, A summary was filed as the
accused was not traceable and, therefore, there was no possibility
that trial was likely to take place. In such event handing over
Muddamal Tractor Trolley to the petitioner, a registered owner of the
vehicle by the trial court ought not to have been reversed by the
revisional court on the ground of some directions given by this
Court, in absence of relevant material before it, deserves to be
quashed and set aside and the same is set aside.
7. Considering
the facts and circumstances of the case and in view of the finding of
the learned JMFC when the petitioner being registered owner of the
Tractor Trolley No. GJ-13-U-220, I hereby quash and set aside the
order passed by the revisional court dated 6.2.2008 passed in
Criminal Misc. Application No.2/2008 by restoring the order of
learned JMFC, Halvad, dated 21.1.2008 and order accordingly.
8. However,
any finding or observation made by the Magistrate or even by this
Court will not come in way in the pending civil proceedings between
the respondent No.2 and petitioner before the concerned court.
9. Rule
is made absolute in the above terms.
10. Direct
service is permitted.
[ANANT
S. DAVE, J.]
//smita//
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